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ALL-INCLUSIVE TRUST DEED
WITH ASSIGNMENT OF RENTS
THIS ALL-INCLUSIVE TRUST DEED made as of June 30, 2006, between Gateway
Distributors, Inc. as TRUSTOR, whose address is 0000 Xxxx Xxxxxxxx Xxxx, Xxx
Xxxxx, X.X. 00000, EMPIRE LAND TITLE, INC., as TRUSTEE, and Xxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx as BENEFICIARY,
WITNESSETH: That Trustor CONVEYS AND WARRANTS TO TRUSTEE IN TRUST, WITH
POWER OF SALE, the following described Property situated in Utah County, State
of Utah.
See Attached Exhibit "A"
Together with all buildings, fixtures and improvements thereon and all
water rights, rights of way, easements, rents, and issues, profits, income
tenements, hereditaments, privileges and appurtenances hereunto belonging, now
or hereafter used or enjoyed with said property, or any part thereof, SUBJECT,
HOWEVER, to the right, power and authority hereinafter given to and conferred
upon Beneficiary to collect and apply such rents, issues, and profits;
FOR THE PURPOSE OF SECURING (1) payment of the indebtedness evidenced by
and ALL-Inclusive Promissory Note (hereinafter the "Note") of even date
herewith, in the principal sum of $770,000.00, made by Trustor, payable to the
order of Beneficiary at the times, in the manner and with interest as therein
set forth, and any extensions and/or renewals or modifications thereof; (2) the
performance of each agreement of Trustor herein contained; (3) the payment of
such additional loans or advances as hereafter may be made to Trustor, or his
successors or assigns, when evidenced by a Promissory Note or Notes reciting
that they are secured by this Trust Deed; and (4) the payment of all sums
expended or advanced by Beneficiary under or pursuant to the terms hereof,
together with interest thereon as herein provided.
This instrument is an All-Inclusive Trust Deed subject and subordinate to
the following instruments (hereinafter "Senior Encumbrances"):
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1) A Trust Deed/Mortgage recorded August 11, 2005 as Entry No. 9464185
of Official records, which secures a Promissory Note in the original principal
amount of $356,435.00 dated August 11, 2005, in favor of Far West Bank,
Beneficiary/Mortgagee, with the Trustor/Mortgagor being Xxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx.
The Promissory Note(s) secured by said Trust Deed(s) is (are) hereinafter
referred to as the "Senior Note(s)"). Nothing in this Trust Deed, the Note, or
any deed in connection herewith shall be deemed to be an assumption by the
Trustor or the Senior Notes or Senior Encumbrances.
TO PROTECT THE SECURITY OF THIS TRUST DEED, TRUSTOR AGREES:
1. To keep said property in good condition and repair; not to remove or
demolish any building thereon, to complete or restore promptly an din good and
workmanlike manner any building which may be constructed, damaged or destroyed
thereon; to comply with all laws, covenants and restrictions affecting said
property; not to commit or permit waste thereof; not to commit, suffer or permit
any act upon said property in violation of law; to do all other acts which from
the character or use of said property may be reasonable necessary, the specific
enumerations herein not excluding the general; and, if the loan secured hereby
or any part thereof is being obtained for the purpose of financing construction
of improvements on said property, Trustor further agrees.
a. To commence construction promptly and to pursue same with
reasonable diligence to completion in accordance with plans and
specifications satisfactory to Beneficiary, and
b. To allow Beneficiary to inspect said property at all times during
construction.
Trustee, upon presentation to it of an affidavit signed by Beneficiary,
setting forth facts showing a default by Trustor under this paragraph, is
authorized to accept as true and conclusive all facts and statements therein,
and to act thereon hereunder.
2. To provide and maintain insurance, of such type or types and amounts
as Beneficiary may require, on the improvements now existing or hereafter
erected or placed on said property. Such insurance shall be carried in
companies approved by Beneficiary with loss payable clauses in favor of an in
form acceptable to Beneficiary. In event of loss, Trustor shall give immediate
notice of Beneficiary, who may make proof of loss, and each insurance company
concerned is hereby authorized and directed to make payment for such loss
directly to Beneficiary instead of to Trustor and Beneficiary jointly, and the
insurance proceeds, or any part thereof, may be applied by Beneficiary, at its
option, to reduction of the indebtedness hereby secured or to the restoration or
repair of the property damaged.
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3. To deliver to, pay for and maintain with Beneficiary until the
indebtedness secured hereby is paid in full such evidence of title as
Beneficiary may require, including abstracts of title or policies or title
insurance and any extensions or renewals thereof or supplements thereto.
4. To appear in and defend any action or proceeding purporting to
affect the security thereof, the title to said property, or the rights of powers
of Beneficiary or Trustee; and should Beneficiary or Trustee elect to also
appear in or defend any such action or proceeding, to pay all costs and
expenses, including cost of evidence or title and attorney's fees in a
reasonable sum incurred by Beneficiary or Trustee.
5. To pay all taxes, insurance and assessments of every king or nature
as and when required by the Holders of Senior Encumbrances or when otherwise due
in absence or any requirements under the Senior Encumbrances.
6. Should Trustor fail to make any payment or to do any act as herein
provided, then Beneficiary or Trustee, but without obligation to do so and
without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may: Make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, Beneficiary or Trustee
being authorized to enter upon said property for such purposes; commence, appear
in and defend any action or proceeding purporting to affect the security hereof
or the rights or powers of Beneficiary or Trustee; pay, purchase, contest, or
compromise any encumbrance, charge or lien which in the judgment or either
appears to be prior or superior hereto; and in exercising any such powers, incur
and liability, expend whatever amounts in its absolute discretion it may deem
necessary therefore, including cost of evidence or title, employ counsel, and
pay reasonable legal fees.
7. To pay immediately and without demand all sums expended hereunder by
Beneficiary or Trustee, with interest from date of expenditure at the rate borne
by the principal balance under the Note until paid, and the repayment thereof
shall be secured hereby.
IT IS MUTALLY AGREED THAT:
8. Should said property of any part thereof be taken or damaged by
reason of any public improvement or condemnation proceeding, or damaged by fire,
or earthquake, or in any other manner, Beneficiary shall be entitled to all
compensation, awards, and other payments or relief therefore, and shall be
entitle at its option to commence, appear in and prosecute in its own name, any
action or proceedings, or to make any compromise or settlement, in connection
with such taking or damage. All such compensation, awards, damages, rights or
action and proceeds, including the proceeds of any policies of fire and other
insurance expenses, including attorney's fees, apply the same on any
indebtedness secured hereby. Trustor agrees to execute such further assignments
or any compensation, award, damages, and rights of action and proceeds as
Beneficiary or Trustee may require.
9. At any time and from time to time upon written request of
Beneficiary, payment of its fees and presentation of this Trust Deed and the
note of endorsement (in
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case of full reconveyance, for cancellation and retention), without affecting
the liability of any persons for the payment of the indebtedness secured hereby,
Trustee may (a) consent to the making of any map or plat of said property; (b)
join in granting any easement or creating any restriction thereon; (c) join in
any subordination or other agreement affecting this Trust Deed or the lien or
charge thereof; (d) reconvey, without warranty, all or any part of said
property. The grantee in any reconvenance may be described as "the person or
persons entitle thereto", and the recitals therein of any matters or facts shall
be conclusive proof of truthfulness thereof. Trustor agrees to pay reasonable
Trustee's fees for any of the services mentioned in this paragraph.
10. As additional security, Trustor hereby assigns Beneficiary, during
the continuance of these trusts, all rents, royalties, profits of the property
affected by this Trust Deed and of any personal property located thereon. Until
Trustor shall default in the payment of any indebtedness secured hereby or in
the performance of any agreement hereunder, Trustor shall have the right to
collect all such rents, issues, royalties and profits earned prior to default as
they become due and payable. If Trustor shall default as aforesaid, Trustor's
right to collect any of such moneys shall cease and Beneficiary shall have the
right, with or without taking possession of the property affected hereby, to
collect all rents, royalties, issues, and profits. Failure or discontinuance of
Beneficiary at any time or from time to time to collect any such moneys shall
not in any manner affect the subsequent enforcement by Beneficiary of the right,
power, and authority to collect the same. Nothing contained herein, nor the
exercise of the right by Beneficiary to collect, shall be, or be construed to
be, an affirmation by Beneficiary of any tenancy, lease or option, nor an
assumption of liability under, nor a subordination of the lien or charge of this
Trust Deed to any such tenancy, lease or option.
11. Upon any default by Trustor hereunder, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be appointed by
a court (Trustor hereby consenting to the appointment of Beneficiary as such
receiver), and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or
any part thereof, in its own name xxx for or otherwise collect said rents,
issues, and profits, including those past due and unpaid, and apply the same,
less costs and expenses of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured hereby, and in such order as
Beneficiary may determine.
12. The entering upon and taking possession of said property, the
collection of such rents, issues, and profits, or the proceeds of fire and other
insurance policies, or compensation or awards for any taking damages of said
property, and the application or release thereof as aforesaid, shall not cure or
waive any default or notice or default hereunder or invalidate any act done
pursuant to such notice.
13. The failure on the part of Beneficiary to promptly enforce any
right hereunder shall not operate as a waiver of such right and the waiver by
Beneficiary of any default shall not constitute a waiver of any other subsequent
default.
14. Time is of the essence hereof. Upon default by Trustor in the
payment of any indebtedness secured hereby or in the performance of any
agreement hereunder, all sums secured hereby shall immediately become due and
payable at the option of
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Beneficiary. In the event of such default, Beneficiary may execute or cause
Trustee to execute a written notice of default and of election to cause said
property to be sold to satisfy the obligations hereof, and Trustee shall file
such notice for record in each county wherein said property or some part of
parcel thereof is situated. Beneficiary also shall deposit with Trustee, the
note and all documents evidencing expenditures secured hereby.
15. After the lapse of such time as may then be required by law
following the recordation of said notice of default, and notice of default and
notice of sale having been given as then required by law, Trustee, without
demand on Trustor, shall sell said property on the date and at the time and
place designated in said notice of sale, either as a whole or in separate
parcels, and in such order as it may determine (but subject to any statutory
right of Trustor to direct the order in which property, if consisting of several
known lots or parcels shall be sold), at public action to the highest bidder,
the purchase price payable in lawful money of the United States at the time of
sale. The person conducting the sale, may for any cause he deems expedient,
postpone the sale from time to time until it shall be completed and, in every
case, notice of postponement shall be given by public declaration thereof by
such person at the time and place last appointed for the sale; provided, if the
sale is postponed for longer than one day beyond the day designated in the
notice of sale, notice thereof shall be given in the same manner as the original
notice of sale. Trustee shall execute and deliver to the purchaser its Deed
conveying said property so sold, but without any covenant or warranty, express
or implied. The recitals in the Deed of any matters or facts shall be
conclusive proof of the trustfulness thereof. Any person, including
Beneficiary, may bid at the same. Trustee shall apply the proceeds of the sale
to payment of (1) the costs and expense of exercising the power of sale and of
the sale, including the evidence of title procured in connection with such sale;
(2) all sums expended under the terms hereof, not then repaid, with accrued
interest at the rate borne by the principal balance under the Note from date of
expenditure; (3) all other sums then secured hereby; and (4) the remainder, if
any, to the person or persons legally entitled thereto, or the Trustee, in its
discretion, may deposit the balance of such proceeds with the County Clerk of
the county in which the sale took place.
16. Upon the occurrence of any default hereunder, Beneficiary shall
have the option to declare all sums secured hereby immediately due and payable
and foreclose this Trust Deed in the manner provided by law for the foreclosure
of mortgages on real property and beneficiary shall be entitled to recover in
such proceedings all costs and expenses incident thereto, including a reasonable
attorney's fee in such amount as shall be fixed by the court.
17. Beneficiary may appoint a Successor Trustee at any time by filing
for a record in the office of the County Recorder of each county in which said
property or some part hereof is situated, a substitution of Trustee. From the
time the substitution is filed for record, the new Trustee shall succeed to all
powers, duties, authority and title of the Trustee named herein or of any
Successor Trustee. Each such substitution shall be executed and acknowledged,
and notice thereof shall be given and proof thereof made, in the manner provided
by law.
18. This Trust Deed shall apply to, inure to the benefit of, and bind
all parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns.
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All obligations of Trustor hereunder are joint and several. The terms
"Beneficiary" shall mean the owner and holder, including any pledge, of the note
secured hereby, in this Trust Deed, whenever the contest requires, the masculine
gender includes the feminine and/or neuter, and the singular includes the
plural.
19. Trustee accepts this Trust when this Trust Deed, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Trust Deed
or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall
be a party, unless brought by Trustee.
20. This Trust Deed shall be construed according to the laws of the
State of Utah.
21. The undersigned Trustor requests that a copy of any notice of
default and of any notice of sale hereunder be mailed to him at the address
hereinbefore set forth.
SIGNATURE OF TRUSTOR
Gateway Distributors, Inc.
By:
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Its:
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0
XXXXX XX XXXX
XX.
XXXXXX XX XXXX
Xx the day of , 20 , personally appeared before me
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who being by me duly sworn, says that he is the
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of said corporation by authority of its by-laws (or by
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authority of a resolution of its board of directors) and said
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acknowledged to me that said corporation executed the same.
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NOTARY PUBLIC
My Commission Expires:
Residing at:
REQUEST FOR FULL RECONVEYANCE
(To be used only when indebtedness secured hereby has been paid in full)
TO: TRUSTEE
The undersigned is the legal owner and holder of the note and all other
indebtedness secured by the within Trust Deed. Said note, together with all
other indebtedness secured by said Trust Deed has been fully paid and satisfied;
and you are hereby requested and directed, on payment to you of any sums owing
to you under the terms of said Trust Deed, to cancel said note above mentioned,
and all other evidences of indebtedness secured by said Trust Deed delivered to
you herewith, together with the said Trust Deed, and to reconvey, without
warranty, to the parties designated by the terms of said Trust Deed, all of the
estate now held by you thereunder.
DATED , 20
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Mail reconveyance to:
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LEGAL DESCRIPTION
Real Property located in the County of Salt Lake, State of Utah, and
described as follows:
Xxx 0X, XXXXXXX XXXX XXXXXXXXXX XXXX, AMENDED Xxx 0, xx xxx Xxxx xx Xxxx
Xxxx, Xxxxxx of Salt Lake, State of Utah, according to the official plat thereof
on file in the office of the recorder of said county.
EXHIBIT "A"
TO DEED OF TRUST
